S.S., Appellant-Defendant v. STATE (2025)

MEMORANDUM DECISION

[1] S.S. appeals the order sealing the entire judicial record in a pending criminal case where (1) S.S. alleged during the investigation of a homicide that, decades earlier, the elected prosecutor sexually abused him; (2) S.S. was charged with murder but pleaded guilty to aiding voluntary manslaughter; (3) the conviction was reversed through post-conviction proceedings; and (4) S.S. now faces a charge of murder in the same cause. We restate the appellate issues as follows:

I.  Whether the Access to Public Records Act (“APRA”) applies to the judicial sealing of case records;

II.  Whether the order must be reversed as an impermissible sua sponte order, despite an evidentiary hearing where the State supported sealing the entire case record; and

III. Whether the order lacked a required finding under APRA that any prejudicial effect created by dissemination of information in the record could not be avoided by a reasonable method other than sealing the entire record.

[2] We conclude APRA applies and the procedures used did not necessitate reversal. However, because we conclude the order did not contain the required finding that there were no reasonable less-restrictive measures available as an alternative to sealing the entire record of proceedings, which date back to July 2014 and involve an ongoing prosecution for murder, we reverse and remand for consideration and application of the necessary criteria set forth in APRA.

Facts and Procedural History

[3] S.S. was a suspect in a 2014 homicide investigation. During the investigation, S.S. alleged that the elected prosecutor sexually abused him in the late 1980s, when S.S. was his client. In July 2014, the State charged S.S. with murder. A special prosecutor was appointed, and investigations were conducted by the Indiana State Police and the Indiana Disciplinary Commission, with no resulting charges or disciplinary action. A special judge was also appointed.

[4] S.S. alleged foul play, claiming the elected prosecutor planned to charge S.S. with manslaughter, but after S.S. levied the allegations against him, the elected prosecutor played a role in seeing that S.S. was instead charged with murder. After S.S. alleged foul play, the special judge entered a case management order in February 2015 (“the 2015 Sealing Order”) wherein the trial court required that “all documents concerning the appointment of a Special Prosecutor shall be filed under seal.” Appellant's App. Vol. II p. 111. The 2015 Sealing Order was in place when the case proceeded to a jury trial in March 2015. The trial began, but S.S. and the State soon reached a plea agreement under which S.S. would plead guilty to Class B felony aiding voluntary manslaughter and admit to being a habitual offender in exchange for a fixed sentence and an agreement that the State would not bring criminal charges against a family member. S.S. pleaded guilty and was sentenced in accordance with the plea agreement. In July 2022, the conviction was reversed through post-conviction proceedings due to an inadequate factual basis for the plea. Appellant's App. Vol. III pp. 30–32.

[5] After the conviction was reversed, the State reinstated charges against S.S. in the same criminal cause number, charging S.S. with murder and alleging he was a habitual offender. Appellant's App. Vol. II pp. 26–27. A special prosecutor was appointed, as was a special judge. In December 2022, S.S. asked the trial court to revisit the 2015 Sealing Order. The court addressed this request at a July 2023 hearing, where the State “ask[ed] the court to stand by the previous order maintaining that the documents be sealed.” Tr. Vol. 2 p. 164. The trial court took the matter under advisement and, in October 2023, entered a written order finding that the 2015 Sealing Order had been entered “without notice and without a proper hearing on the matter.” Appellant's App. Vol. III p. 55. The court then said it would hold a hearing “on the motion to unseal[.]” Id. In an order scheduling that hearing, the court indicated that, consistent with “Rule 6 of the Rules on Access to Court [R]ecords,” the trial court would apply APRA in deciding whether to seal “all or part” of the record. Id. at 46.

[6] The hearing was held on February 9, 2024. At the outset of the hearing, the trial court reflected on the procedural history of the case and how a judge “had sealed a portion of the record ․ without a hearing as required by the rules.” Tr. Vol. 2 p. 180. The court noted it proactively “seal[ed] the entire record” to avoid having the record “half sealed and half unsealed until ․ the hearing” on whether or not the record should remain sealed. Id. The State argued the record “should remain under seal[.]” Id. at 181. The trial court said it would take the matter under advisement and that “the entire case [was] going to remain sealed until [it] ha[d] a chance to review [the applicable rules]” because the trial court “th[ought] that was a better approach than the kind of hodge-podge that existed before then” under the 2015 Sealing Order. Id. at 184.

[7] On April 26, 2024, the trial court entered an order sealing the entire criminal record. Appellant's App. Vol. III pp. 58 (contemplating “whether or not the record in this case should be sealed”), 59 (sealing “this record”). The order quoted APRA and listed the five findings required to support sealing a judicial record, id. at 58–59, among them, that “any prejudicial effect created by dissemination of the information cannot be avoided by any reasonable method other than sealing the record,” Ind. Code § 5-14-3-5.5(d)(3). At one point in the order, the trial court found that “the record [was] riddled with motions containing references to [S.S.’s] unproved, and likely unprovable, allegations” and that “[p]ublic access to those allegations at this point serve[d] no purpose other than to confound the issues for trial and publicly humiliate an elected official.” Appellant's App. Vol. III p. 59. The trial court further found that allowing public access to the allegations “would make selecting a jury for [a] trial difficult, if not impossible,” with a risk of swaying potential jurors against S.S. or the judicial system. Id. The trial court ultimately determined “it [was] in the best interest of [S.S.], the State, and the public that this record”—i.e., all past and future records forming part of the criminal case—“remain sealed pending a resolution in this matter.” Id. The trial court certified its order for interlocutory appeal. Id. at 70. S.S. then perfected this interlocutory appeal.

Discussion and Decision

I. Applicability of APRA

[8] S.S. argues reversal is necessary because the trial court applied APRA when it sealed the judicial records. S.S. contends APRA conflicts with our rules of court, specifically, provisions of the Indiana Rules on Access to Court Records (“ACR Rules”), and that, in any case, the statutory language used in APRA does not reflect our legislature's intent to have APRA apply to trial courts.¹

[9] We interpret statutes de novo, giving statutory language its plain meaning. ESPN, Inc. v. Univ. of Notre Dame Police Dep't, 62 N.E.3d 1192, 1195 (Ind. 2016). The same principles apply to court rules. Noble County v. Rogers, 745 N.E.2d 194, 197 n.3 (Ind. 2007). If the language is clear and unambiguous, we do not apply other principles of construction. ESPN, Inc., 62 N.E.3d at 1195–96.

[10] ACR Rule 1 refers to APRA, stating: “Pursuant to the inherent authority of the Indiana Supreme Court and pursuant to the Indiana Access to Public Records Act, this rule governs public access to, and confidentiality of, Court Records.” The ACR Rules “appl[y] to everyone who creates a Court Record as defined in Rule 3(A).” Ind. Access to Court Records Rule 1. The term “Court Record” encompasses “any document, information, data, or other item created, collected, received, or maintained by a Court, Court agency[,] or Clerk of Court in connection with a particular case.” A.C.R. 3(A), (B). Moreover, “Court” means “the Indiana Supreme Court, Court of Appeals, Tax Court, and all Circuit, Superior, Probate, City, Town, or Small Claims Courts.” A.C.R. 3(D).

[11] ACR Rule 4 specifies that “a Court Record is accessible to the public except as provided in [ACR] Rule 5.” ACR Rule 5 refers to APRA on more than one occasion. Indeed, ACR Rule 5(A)(2) excludes from public access “[e]ntire cases where all Court Records are sealed in accordance with [APRA,]” and ACR Rule 5(B)(4) excludes specific documents within a case when “sealed in accordance with [APRA.]” The commentary to ACR Rule 5 clarifies the relationship between the ACR Rules and APRA, explaining: “A court has only two ways to exclude otherwise accessible records from Public Access: sealing the records pursuant to [APRA]; or entering an Order Excluding Court Records from Public Access pursuant to the specific requirements in [A.C.R.] Rule 6.”

[12] S.S. refers to constitutional principles requiring the separation of powers, arguing that APRA does not apply to trial courts because court rules have primacy over statutes attempting to regulate the judiciary. Here, however, the issue of primacy is inapplicable because our Supreme Court incorporated APRA into the ACR Rules. S.S. also claims APRA could not apply to a trial court because APRA states that it applies to “public agencies”—terminology S.S. claims does not include a trial court. We disagree. Indiana Code section 5-14-3-5.5(a) specifically states: “This section [of APRA] applies to a judicial public record.” More importantly, our Supreme Court adopted ACR Rules that expressly incorporate APRA's sealing provisions, regardless of how “public agency” might be defined elsewhere. Due to the explicit incorporation of APRA in the ACR Rules, S.S. has not established the trial court erred in applying APRA through our court rules, which embrace its application.

II. Procedures Leading to the Sealing Order

[13] S.S. next argues that APRA contemplates a party-initiated process, rather than court-initiated sealing, and the trial court improperly acted sua sponte in sealing the judicial records. We observe that Indiana Code section 5-14-3-5.5(d) contemplates court action in response to a “person seeking the sealing of the record[.]” Indeed, this section of APRA requires a determination “that the remedial benefits to be gained by effectuating the public policy of the state declared in section 1 of this chapter”—which favors full and complete public access to records—“are outweighed by proof by a preponderance of the evidence by the person seeking the sealing of the record” that the five-part standard for sealing the record has been satisfied. I.C. § 5-14-3-5.5(d) (emphasis added).

[14] Regardless of procedures leading up to the evidentiary hearing, it is apparent from the record that the State requested that the records “remain under seal[.]” Tr. Vol. II p. 181. Indeed, the State consistently advocated in favor of sealing the record. Under the circumstances, we disagree with S.S.’s characterization of the sealing order as lacking any party support. Thus, we cannot say the trial court acted improperly in addressing whether to issue a sealing order or that the record at hand reveals a procedural deficiency warranting reversal of the order.

III. Adequacy of APRA Findings

[15] We now address whether the written order reflects adequate findings under APRA. Indiana Code section 5-14-3-5.5(d) states in pertinent part as follows:

A decision to seal all or part of a public record must be based on findings of fact and conclusions of law, showing that the remedial benefits to be gained by effectuating the public policy of the state declared in section 1 of this chapter are outweighed by proof by a preponderance of the evidence by the person seeking the sealing of the record that:

(1) a public interest will be secured by sealing the record;

(2) dissemination of the information contained in the record will create a serious and imminent danger to that public interest;

(3) any prejudicial effect created by dissemination of the information cannot be avoided by any reasonable method other than sealing the record;

(4) there is a substantial probability that sealing the record will be effective in protecting the public interest against the perceived danger; and

(5) it is reasonably necessary for the record to remain sealed for a period of time.

[16] Pursuant to Trial Rule 52(A), the trial court “shall make special findings of fact without request” whenever special findings are “provided by ․ statute.” In general, we “shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). However, Trial Rule 52(D) specifies that the “failure to find upon a material issue upon which a finding of fact is required ․ shall not be resolved by any presumption and may be challenged under subdivision (B)[.]” That subdivision allows a party to challenge a judgment where “special findings of fact required by th[e] rule are lacking, incomplete, inadequate in form or content or do not cover the issues raised by the pleadings or evidence[.]” T.R. 52(B) (specifying that a party may challenge the adequacy of the factual findings for the first time on appeal).

[17] Here, the trial court quoted the five-part APRA standard before identifying and discussing its concerns about the case. The order reflects the court's concerns that disseminating the entire record could jeopardize jury impartiality and the ability to ensure a fair trial. Although the trial court thoughtfully expressed these concerns, there is a critical deficiency in the order with respect to the third statutory consideration. That is, Indiana Code section 5-14-3-5.5(d)(3) required the trial court to find that “any prejudicial effect created by dissemination of the information cannot be avoided by any reasonable method other than sealing the record.” This provision mandates consideration of less restrictive alternatives to complete sealing of the record. See id. In issuing an order sealing the entire criminal record, the trial court observed that “the record is riddled with motions containing references to ․ unproved, and likely unprovable, allegations.” Appellant's App. Vol. III p. 59. However, the trial court's observation falls short of constituting a specific finding that partial sealing or redaction of the record—rather than sealing the entire record, including completely sealing the ongoing proceedings—would be insufficient to protect the identified concerns.

[18] On appeal, the State argues that less restrictive alternatives, such as “drawing a jury from a different county,” would be inadequate because S.S.’s “claims are likely to cause broad attention if publicized.” Appellee's Br. p. 19. The State also asserts that publicity of S.S.’s allegations “would be very likely to reach the witnesses” and could affect the jurors’ perceptions. Id. However, the State's argument, like the trial court's order, does not address why partial sealing or redaction would not adequately guard against these potential prejudicial effects.

[19] APRA establishes a general rule that “all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees,” specifying that its provisions “shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record[.]” I.C. § 5-14-3-1. Here, the sealing order highlighted potential difficulties in implementing a less-restrictive measure than sealing the entire record, such as redaction, in that the court found the record was “riddled with” S.S.’s allegations. Appellant's App. Vol. III p. 59. However, the judgment did not embrace the necessary finding as to the reasonableness of undertaking “any ․ method other than sealing the record,” which accounts for the reasonableness of those types of administrative burdens in view of the strong public policy favoring full and complete access to government records. I.C. § 5-14-3-5.5(d)(3). Because the trial court's order did not include this required statutory finding, we reverse and remand for the trial court to enter a written order that contains all required statutory findings.²

Conclusion

[20] Because APRA is incorporated through the ACR Rules and the State requested that the judicial records remain sealed, the trial court did not err in holding a hearing on whether to seal the records, or in deciding to apply APRA in determining whether sealing was warranted. However, because the resulting order sealing the entire record did not contain a required finding regarding the reasonableness of less-restrictive alternatives to complete sealing, we reverse and remand for entry of a judgment that contains all required statutory findings.

[21] Reversed and remanded.

FOOTNOTES

1.   The Indiana Rules on Access to Court Records replaced portions of Administrative Rule 9.

2.   Having identified this deficiency, we do not remark on the adequacy of any other aspect of the order.

Foley, Judge.

Mathias, J. and Scheele, J., concur.